Officially released June 5, 2018.
The short version: Remands are limited to the specific direction of the Appellate Court. People who want to litigate as much as possible can spend a lot of money in the process.
The background to this case is one of exceedingly expensive and protracted custody litigation. The parties were divorced in 2005. In 2008 Plaintiff sought to open the Judgment based on fraud. Plaintiff secured an order that certain funds be held in escrow pending the outcome of an Oneglia hearing to determine whether Plaintiff could substantiate allegations beyond mere suspicion and, thus, be entitled to discovery. The Court ruled in Plaintiff’s favor on the Oneglia issue. The Attorney for Minor Child filed a motion requesting payment for various experts and counsel for their services in the custody litigation. The trial court granted that motion and ordered monies from the escrow funds disgorged for that purpose.
On prior appeal, the Appellate Court held “the trial court was without authority to disburse funds owned by the defendant that were being held in a court-ordered escrow account.” Zilkha v. Zilkha, 159 Conn. App 167, 175, 123 A.3d 439 (2015). The prior decision further held that, where the underlying motion to open the judgment was still pending, the trial court lacked the authority to direct that a specific asset be used for the payment of fees, post-judgment. The Appellate Court previously “reversed the judgement as to the order to disburse escrow funds to the experts and vacated that portion of the order.” The Appellate Court did not issue an order for any action as to the funds that had been disbursed, only the underlying order to disburse them.
Defendant filed a motion with the trial court requesting that the experts be ordered to return the funds. Defendant did not dispute that the fees were owed to the experts, nor that the remaining escrow funds had been distributed between the parties by stipulation. The trial court determined that there had been no remand or order as to repayment of the escrow funds that had been disbursed, merely a vacating of the order to disburse them, and denied Defendant’s motion.
In this appeal, Defendant first claimed that the trial court then erred failing to effectuate the prior order by the Appellate Court by refusing to order the funds returned to the escrow account. The Appellate Court held that there had been no order to claw back or repay the funds and found that the trial court had not violated its prior order.
Defendant’s second claim was that the trial court should have used its equitable powers to order the return of the escrow funds. Defendant provided no authority for this argument. Defendant never claimed that the accounting was improper or that the fees that were paid were not owed. One who seeks equity must due equity, and if the escrow funds had not been disbursed Defendant would have still owed the money that was paid.